DIST. CONSUMER DISPUTES REDRESAL FORUM
NORTH 24 Pgs., BARASAT.
C. C. CASE NO. 683/2014
Date of Filing: Date of Admission Date of Disposal:
22.12.2014 07.01.2015 10.06.2015
PETITIONER = Vs. = O.Ps.
1. Mithu Mondal 1. Sri Kartick Patra
W/o. Goutam Mondal S/o. Sri Sudharshan Patra
of 153, B.K.Mitra Road, 2. Smt. Soma Patra
P.S.-Baranagar, Kolkata-700036. W/o. Sri Kartick Patra partners
2. Bapi Mondal @Goutam Mondal of M/S Shovik Construction
S/o. Kashinath Mondal both are residing at 4, Rai
of 153, B.K.Mitra Road, Jatindra Nath Chowdhury Lane,
P.S.-Baranagar, Kolkata-700036 P.S.-Baranagar, Kolkata-700036
3. Gopal Chandra Das
4. Ashoke Kumar Das
Both are S/o. Lt. Lakshmi Narayan
Das, residing at 4, Rai Jatindra
Nath Chowdhury Lane,
P.S.-Baranagar, Kolkata-700036
5. Smt. Kamalabala Das
W/o. Lt. Satya Charan Das
6. Parithos Das
S/o. Lt. Satya Charan Das
7. Sri Debasish Das
S/o. Lt. Satya Charan Das
8. Kumari Kalyani Das
D/o. Lt. Satya Charan Das
All are residing at 4A, Roy Jatindra
Nath Chowdhury Lane,
P.S.-Baranagar, Kolkata-700036.
J U D G E M E N T
Facts of the case, in short, is that the complainant No-2 was tenant under the OP No-3 and 4 in respect of 100 sq. ft more or less excluding bathroom, privy
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and open space at being premises No-4, Rai Jatindra Nath Chowdhury Lane, P.S.-Baranagar, Kolkata-700036 at a monthly rental of Rs 200/- payable according to English calendar. The complainant no-2 along with his wife i.e. the complainant no-1 herein had been residing at the said premises from last 8 years.
Complainant stated that the OP Nos. 3 and 4 are the land owner in respect of premises no-4, Rai Jatindra Nath Chowdhury Lane, P.S.-Baranagar, Kolkata-700036 and OP No-5 to 8 are the land owners in respect of premises no-4A, Rai Jatindra Nath Chowdhury Lane, P.S.-Baranagar, Kolkata-700036.
Complainant also stated that the above two premises owners mutually agreed to amalgamate the said properties in one premises which they made and amalgamation deed for amalgamating the said two premises and now the two premises amalgamated in one i.e. 4, Roy Jatindra Nath Chowdhury Lane, P.S.-Baranagar, Kolkata-700036.
Complainant further stated that the OP No-1 and 2 are the partners of a partnership firm under name and style of M/s. Souvik Construction and are the developers having its place of business at 4, Rai Jatindra Nath Chowdhury Lane, P.S.-Baranagar, Kolkata-700036 and resident of 87/B, Cossipore Road, Block-F, Room No-11, Kolkata-700002.
Complainant stated that the OP No-1 and 2 has entered into an agreement for development with the OP Nos. 3 to 8 in the year 19.07.2005 to develop and construction of residential cum commercial complex on the said land and the OP Nos. 3 and 4 and 5 to 8 has also given a general power of attorney dated 20th June, 2005 and 14th July, 2005 respectively to the OP Nos. 1 and 2 for developing the land lying and situated at 4, Rai Jatindra Nath Chowdhury Lane, P.S.-Baranagar, Kolkata-700036 and on 10.05.2006 with the help of developer, the owner received sanction plan from Baranagar Municipality vide plan no-231/62, valid upto 04.05.2009.
Complainant also stated that the OP No. 3 and 4 approached the complainant with the proposal that the complainant would be provided with a self contained one bed room flat with privy and kitchen on the North/West side of the ground floor or second floor measuring an area 150 sq. ft more or less at the cost of construction @Rs 800/- per sq. ft on ownership basis, in lue of the existing tenancy despite knowing of the fact that the prevailing market value of the premises @2000/- per sq. ft, in the event the complainant would allow the OP No.1 and 2 to develop the said premises and issue “NO OBJECTION” to that effect.
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Complainant also stated that finding lucrative proposal the complainant agreed to the proposal of OPs with an verbal assurance that during the tenure of construction the complainant would be provided with the alternative accommodation of shifting at the cost of the OP developer and to that effect the complainant entered into an agreement with the OP developer being the constituted attorney holder of the OP land owner on 27.06.2006 and put signature on the “NO OBJECTION”.
Complainant further stated that as per the said agreement for sale the OP No-1 on behalf of all the OPs were agree to sale out a self-contained one bed room flat on the North/West side of the ground floor or second floor measuring about 150 sq. ft built up area at a construction cost of Rs 1, 20, 000/- on ownership basis, in lue of the existing tenancy, in a newly constructed G+3 storied building at premises no-4, Rai Jatindra Nath Chowdhury Lane, P.S.-Baranagar, Kolkata-700036 and the same was agreed by the complainant vacate the said premises to give free access to the OP developer.
Complainant stated that the complainant have paid the total sum of Rs 1, 01, 200/- to the developer i.e. Sri Kartick Patra against the said agreement for sale but the developer on good gesture avoided to issue money receipt with the plea that the some would be admitted there is nothing to panic or disbelieve whereas initially the OP developer was prompt in issuing money receipt wherein Rs 75, 000/-.
Complainant also stated according to the said agreement for sale the developers were suppose to handover the said flat within 18 months from the date of the said agreement but the developers after completion of the stipulated period and/or construction of the building fails to handover the possession of the said flat. Thereafter the complainant asked the developers for the possession/handover of the said flat, the developers i.e. Sri Kartick Patra and Smt. Soma Patra on several pretext ignored the complainant’s request with a plea that they will provide the possession of the flat on the second floor in the newly constructed building but all were in vain.
Complainant further stated that sometime in the end of 2008, complainant came to know that all the flats of the said building Block-A were sold out and given the possession to the different new purchasers. In the month of January, 2014 the OP Nos. 1 and 2 i.e. Sri Kartick Patra and Smt. Soma patra called the complainant at their office and asked for balance consideration amount against the said agreement for sale with a pretext that they will allot the complainant one
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bed room flat in Block-B of the same site and/or construction project which is constructed by them. The OP Nos. 1 and 2 provided a ground floor plan of the Block-B of the same premises and a sanction plan issued on 10.05.2006.
Complainant stated that on 20.01.2014 the complainant paid Rs 15, 000/- to the OP No-1, the OP No-1 wrote it on a paper, when the complainant asked for the money receipt, OP No-1 provided the complainants that the money receipts shall be provided to the complainant after payment of full consideration amount according to the agreement for sale dated 27.06.2006. On several date, the complainant again paid the OP No-1 against the agreement for sale i.e. on 25.01.2014 Rs 8, 000/-, on 10.02.2014 Rs 1,200/- and on 20.02.2014 Rs 2, 000/- but no money receipts has been issued to the complainants.
Complainant also stated that recently on 16.11.2014, when the complainants asked for the possession of said flat and the money receipts for the amount which the complainant have paid during the month of January & February, 2014 to the OP No-1 and 2 i.e. Sri Kartick Patra and Smt. Soma Patra on account of the said agreement for sale, the developers i.e. the OP Nos. 1and 2 refused the complainant to bestow the possession of the flat as well as the money receipts. Hence this complaint.
OPs have contested the case by filing affidavit in chief.
Point for Decision:-
Whether the complainant is entitled to get any relief as prayed for?
Decision with Reasons
Complainants filed affidavit in chief and OP No-1 and 2 filed affidavit in chief. We have perused the affidavit in chief and heard the argument of the Ld. Lawyer of the complainants. OPs did not turn up to argue the case. from the affidavit in chief of the OP No-1 and 2 it appears that OP No-1 in Para-10 of the affidavit in chief admitted that the agreement for sale dated 27.06.2006 was executed between the land owner, complainants and the OP No-1 and 2. It is also admitted by the OP in Para-4 of the affidavit in chief that OP No-1 agreed to sale a self contained flat, measuring about 150 sq. ft including super built up area, on the ground floor, consisting of 1 bed room on the North-West side of the building of the premises no-4, Rai Jatindra Nath Chowdhury Lane, P.S.-Baranagar for a total consideration money for Rs 1, 20, 000/- to the complainants. But complainants have not paid entire consideration money. So, no sale deed was made in favour of the complainants. OPs are ready and willing to return the
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money. In Para-6 of the Affidavit in chief OPs admitted the execution of sale deed in respect of the above flat. But he was never agreed to hand over the same in Block-B of the said premises. Complainants field the copy of the rent receipts marked annexure-A, copy of the general power of attorney marked annexure-B and C, copy of the agreement marked annexure-D. Admittedly the agreement was executed between the complainants and the OPs. Copy of the money receipts are marked annexure-E. From the money receipts, it appears that complainants have paid Rs 75, 000/- to the OPs out of the Rs 1, 20, 000/-. So, it appears that Rs 45, 000/- is still due from the complainants. OPs admitted that they did not deliver the possession of the flat to the complainants as because complainants did not pay the balance consideration money. But OPs are liable to deliver possession of the flats to the complainants on receiving the balance consideration money and Ops are responsible to execute and register the deed of conveyance in favour of the complainants. Accordingly in view of the above discussion, we are of the considered view that complainants are entitled to get relief as prayed for.
Hence
It is ordered,
that the complaint and same be allowed on contest against the OPs.
Complainants are directed to pay the balance consideration money to the OPs within one month from the date of this order, after receiving the balance consideration money OPs will immediately deliver possession of the flat mentioned in the agreement in habitable condition.
OPs are directed to execute and register the sale deed in favour of the complainants within one month from the date of this order, failing which complainants are at liberty to execute and register the same through this Forum after depositing the balance consideration money in this Forum.
In the alternative, OPs are directed to refund the consideration money along with price at prevailing Govt. market value of the flat to the complainants.
OPs are also directed to pay compensation of Rs 10, 000/- and Rs 5,000/- as litigation cost to the complainants within one month from the date of this order, failing which OPs shall have to pay sum of Rs 300/- per day from the date of this order till its realization, as punitive damages, which shall be deposited by the OPs in this State Consumer Welfare Fund.
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Let copies of the order be supplied to the parties free of cost when applied for.
Member Member President
Dictated & Corrected by me.
